Line to take

Where a public authority conforms with the provisions of part II of the section 45 code of practice in relation to the provision of advice and assistance, it will be held to have complied with section 16.

Further Information

N.B. The wording of the section 45 code of practice (as opposed to that of the EIR regulation 16 code of practice) means that there are fundamental differences in the approach to advice and assistance under FOI and the EIRs. For the EIR approach see LTT91

Section 16(1) of the Act provides that:

“It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it”

Section 16(2) states that:

“Any public authority which in relation to the provision of advice and assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection(1) in relation to that case”

In Berend v the Information Commissioner and London Borough of Richmond upon Thames (LBRT) the Tribunal confirmed in relation to s16 that “Where the public authority has complied with the Code they will be held to have fulfilled their obligations”,

This confirmed that the 16(1) duty to provide advice and assistance “so far as it would be reasonable to expect the authority to do so” is limited by 16(2) to the requirements of the section 45 code of practice. Whilst a public authority might choose to go beyond the provisions of the code it doesn’t have to do so in order to comply with section 16.

The Commissioner’s line accords with the Tribunal’s decision in this case, where s16 was considered as a main point of appeal, rather than looking to cases where s16 may have been briefly commented upon as a side issue.

Requirements of the code

Generally the code is about good practice by public authorities, rather than “obligations” which arise through its links with the Act. However, because Part II relates specifically to the duty to provide advice and assistance under section 16, failure to comply with this part of the code can mean a breach of section 16. It should be noted that Part I and Parts III to VI are not linked to section 16 in this way.

The provision of advice and assistance to persons who propose to make or have made, requests for information is dealt with in Part II of the section 45 code of practice which comprises:

Introductory paragraph (para 3)

Advice and assistance to those proposing to make requests (paras 4 to 7)

The overall approach to section 16 should be to firstly refer to the code and establish which, if any, paragraphs are relevant and what is triggering the duty to provide advice and assistance. (i.e. which of the above bullet pointed situations are you in?)

If there is no trigger to provide advice and assistance (i.e. you are not in any of the situations above) then there is no section 16 duty and therefore no breach. If you still have concerns about how the public authority dealt with the request then these can only be addressed in a Decision Notice under the “Other matters” heading.

If a trigger is established then the next step will be to consider whether the public authority has conformed with the provisions in the relevant paragraphs of the code.

Limits of the code

The Code explicitly states in paragraphs 7 and 10 that the lists of examples given are not exhaustive and that public authorities should be “flexible in offering advice and assistance most appropriate to the circumstances of the applicant.”

If an explicit statement had been made to the effect that Part II of the code, or the whole of the code was not exhaustive, then it could be argued that to comply with section 16 a public authority must be flexible in its general provision of advice and assistance and that situations other than those detailed in the code might lead to a s16 breach.

However this is not the case. Paragraph 7 promotes flexibility where a person is unable to frame their request in writing, and paragraph 10 promotes flexibility when there is a need to clarify a request (as detailed under the heading Clarifying Requests above). Whilst the section below headed “Reasonable to expect and the section 45 code” is relevant in this respect it does not confer any duty to go beyond the code in order to comply with s16.

Good practice

This does not mean that we would not wish public authorities to be flexible and helpful in a more general manner. Indeed we would encourage public authorities to go beyond the provisions of the code as a matter of good practice. However failure to follow such good practice is not a breach of section 16.

Where a public authority has satisfied the provisions of the section 45 code it will not be in breach of section 16.

16(1) “Reasonable to expect” and the section 45 code

As discussed above Berend confirmed that compliance with the code means compliance with section 16. This was reiterated in Brown v The Information Commissioner and The National Archives.

The IT in Berend further commented that “ failure to comply with the Code does not inevitably mean that a public authority has breached section 16 FOIA.”, and again this was reiterated in Brown.

In Brown the IT went on to comment that “The duty on a public authority to provide assistance and advice under section 16 is expressly qualified by the words “only in so far as it would be reasonable to expect the authority to do so.” It is clear from this that the advice and assistance that it would be reasonable to expect depends upon the particular public authority in question. The issue is about what it is reasonable for “the” public authority in question to do.”

It then found that it would have been reasonable for The National Archives, as a public authority whose core functions included searches, to advise the applicant to phase his requests in order to conform with the provision under paragraph 14 of the section 45 code of practice. This paragraph provides that where a request exceeds the cost limit a public authority should “consider providing an indication of what, if any information could be provided within the cost ceiling. The authority should also consider advising the applicant that by reforming or re-focussing their request, information may be able to be supplied for a lower, or no fee.”

This suggests that although compliance with the section 45 code will always mean compliance with s16, there is still some judgement to be made about how far it is reasonable for a particular public authority to go in order to conform with any particular provision of the code that has been triggered.

It may also be that certain provisions or examples of desirable practice within the code are not deemed reasonable for every public authority to follow, hence the comments that failure to meet the code doesn’t inevitably lead to a section 16 breach.